Citation Nr: 9826252
Decision Date: 08/31/98 Archive Date: 07/27/01
DOCKET NO. 94-48 353 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim for service connection for diabetes mellitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Valerie E. French, Associate Counsel
INTRODUCTION
The veteran served honorably on active duty from March 1967
to March 1969. He served in Vietnam and his decorations
include the Combat Infantryman Badge and the Army
Commendation Medal. The DD Form 214 lists his primary
specialty as light weapons infantry.
This appeal arises before the Board of Veterans' Appeals
(Board) from a January 1993 rating decision of the Winston-
Salem, North Carolina, Regional Office (RO) of the Department
of Veterans Affairs (VA), in which the RO determined that new
and material evidence had not been presented to reopen the
veteran's claim for service connection for diabetes mellitus.
Pursuant to a December 1997 Remand by the Board, a travel
board hearing was scheduled for the veteran in accordance
with his request. When informed that the hearing would be
held on June 16, 1998, the veteran responded that he would
attend. However, the record shows that he failed to report
for that hearing, and the reasons therefor are not indicated.
Accordingly, the Board has construed his failure to appear as
a withdrawal of his hearing request, as per the provisions of
38 C.F.R. § 20.704 (1997). Therefore, the Board finds that
all due process considerations have been satisfied in this
regard, and adjudication has proceeded on appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection is appropriate
for diabetes mellitus, which was diagnosed in 1971. He
claims that he exhibited symptoms of this disorder while he
was serving on active duty.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
new and material evidence has not been presented, and
accordingly, the claim for service connection for diabetes
mellitus is not reopened.
FINDINGS OF FACT
1. Pursuant to a May 1973 rating decision, the RO denied
service connection for diabetes mellitus. As an appeal was
not initiated within one year of notification of the adverse
decision, the RO's May 1973 denial became final.
2. The evidence submitted since the RO's May 1973 decision
is not probative of the issue of entitlement to service
connection for diabetes mellitus, as this evidence does not
provide a reasonable possibility that the adverse outcome
would be changed, in the event that the claim is reopened and
adjudicated on its merits.
CONCLUSION OF LAW
The additional documentation submitted since the RO's May
1973 decision does not constitute new and material evidence
which is sufficient to reopen a claim for service connection
for diabetes mellitus, and therefore, the claim is not
reopened. 38 U.S.C.A. §§ 1154, 5107, 5108, 7105 (West 1991 &
Supp. 1998); 38 C.F.R. §§ 3.104(a), 3.156 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Prior RO Decision
Pursuant to a May 1973 rating action, the RO denied service
connection for diabetes mellitus. The RO found that there
was no evidence showing diabetes mellitus in service or
within the one year presumptive period. The veteran was
notified of the RO's denial by letter dated May 30, 1973.
Thereafter, he did not initiate an appeal of the adverse
decision.
In making its May 1973 rating decision, the RO considered the
veteran's service medical records and a pre-service private
medical report.
A pre-service treatment report from the veteran's private
physician shows that in July 1965, a urinalysis was negative
for albumin and sugar.
The report of the veteran's 1967 induction examination shows
that the endocrine system was clinically evaluated as normal.
Service medical records show treatment for prostate problems
and urethritis. Laboratory reports, dated April 1968 and May
1968, were negative for abnormal sugar levels.
The May 1969 separation examination report shows that the
endocrine system was clinically evaluated as normal, and a
urinalysis was negative for an abnormal sugar level.
New and Material Evidence
Absent the filing of a notice of disagreement within one year
of the date of mailing of the notification of the initial
review and determination of an appellant's claim, a rating
determination is final and is not subject to revision upon
the same factual basis. 38 U.S.C.A. § 7104 (West 1991 &
Supp. 1997), 38 C.F.R. § 20.1100 (1997). However, if new
and material evidence is presented or secured with respect to
a claim which has been disallowed, the Secretary shall reopen
the claim and review the former disposition of the claim.
38 U.S.C.A. § 5108 (West 1991).
The United States Court of Veterans' Appeals (hereinafter
"Court") has held that the provisions of 38 U.S.C.A. § 5108
(West 1991) require a review of all evidence submitted by the
claimant since the last final denial of a claim in order to
determine whether a claim must be reopened and adjudicated on
the merits. Glynn v. Brown, 6 Vet.App. 523, 529 (1994); see
also Evans v. Brown, 9 Vet.App. 273, 285 (1996).
As the RO's May 1973 denial of a service connection claim for
diabetes mellitus was not appealed, the decision became
final. Therefore, the issue presently before the Board is
whether new and material evidence has been submitted since
the RO's May 1973 decision.
According to Title 38 of the Code of Federal Regulations
(1997),
"New and material evidence" means
evidence not previously submitted to
agency decision makers which bears
directly and substantially upon the
specific matter under consideration,
which is neither cumulative nor redundant
and which, by itself or in connection
with the evidence previously assembled,
is so significant that it must be
considered in order to fairly decide the
merits of the case. 38 C.F.R. § 3.156(a)
(1997).
The United States Court of Veterans Appeals (the Court) has
summarized case law on claims to reopen previously and
finally disallowed claims:
[T]he RO or BVA (Board) must conduct a
two-step analysis. First, it must
determine whether the evidence presented
or secured since the prior final
disallowance of the claim is "new and
material." If it is, the RO or Board
must then review the new evidence "in the
context of" the old to determine whether
the prior disposition of the claim should
be altered. "New" evidence is evidence
which is not "merely cumulative" of other
evidence in the record. Evidence is
"material" when it is relevant to and
probative of the issue at hand and there
is a "reasonable possibility that the new
evidence, when viewed in the context of
all the evidence, both new and old, would
change the outcome." In determining
whether evidence is new and material,
"the credibility of the evidence must be
presumed."
Bernard v. Brown, 4 Vet.App. 384, 389 (1993).
The relevant evidence received by VA since May 1973 consists
of post-service treatment and evaluation reports, the
transcript of a personal hearing conducted in January 1994,
and statements by the veteran on appeal.
An August 1971 clinical record shows that the veteran was
hospitalized at the VAMC in Fayetteville, North Carolina,
with complaints of feeling drowsy, weak, and nervous. It was
noted that his physician had found 4+ sugar in his urine, and
he was referred for regulation. On admission, his blood
sugar was 546. He denied any history of high blood sugar,
and he gave a two week history of weakness and reported a
loose stool two or three times off and on for one year. A
diagnosis of diabetes mellitus was given.
The September 1971 discharge report shows that a complete
general physical examination was within normal limits, and
his initial blood sugar was 244. There was no acetone in the
serum. He was placed on a diabetic program and switched to
long-acting Insulin. He regulated well with a fasting blood
sugar of 148 and generally negative diabetic urine. The
report shows that he was discharged on September 10, 1971,
and was placed on a diabetic diet and 28 units of NPH Insulin
daily. He was also instructed to test his urine before meals
and at bedtime.
Post-service VA treatment reports, dated in the 1990's, show
that the veteran continued to be followed for treatment of
diabetes mellitus, manifested by high blood sugar and the
need for insulin therapy.
In January 1994, the veteran was afforded a personal hearing
before a local officer at the Winston-Salem RO. At this
time, the veteran indicated that during his active service,
he was treated for symptoms which were later diagnosed as
diabetes. These symptoms included nervousness and weakness,
which the veteran referred to as "spells." He also stated
that he was given some kind of nerve medication which helped
to relieve these symptoms. According to the veteran, when he
was in the military he noticed that if he used three spoons
of sugar in his coffee, it would make him nauseated and he
would throw up. When he reduced the amount of sugar in his
coffee, the nausea stopped. The veteran stated that he was
first told that he had diabetes when he was treated at the
Fayetteville VAMC.
The veteran stated that right after his discharge, he went
back to work at barbering school in Fort Bragg. At the time
of this hearing, the veteran was afforded an additional
period of time in which to obtain evidence in support of his
claim, to include the reports of a private physician who
treated him just following his discharge.
The report of an undated VA examination shows findings of
diabetic neuropathy with retinopathy.
Having reviewed the additional documentation submitted since
May 1973, the Board is of the opinion that the veteran has
failed to submit evidence which is new and material to the
issue of entitlement to service connection for diabetes
mellitus. Specifically, the additional evidence does not
provide any new information which suggests that diabetes
mellitus had its onset during the veteran's active service,
or within one year thereafter. The additional evidence shows
that diabetes was diagnosed in August 1971, or over two years
following his discharge, and that he is currently receiving
treatment for insulin dependent diabetes mellitus. However,
the medical records show that the veteran's blood sugar was
evaluated as normal at all times during service, to include
the time of discharge. The veteran has not presented any
objective evidence, to include a medical opinion, which
suggests that symptoms of diabetes mellitus were manifested
either during service or within the presumptive period.
As such, the veteran has not submitted any evidence which
suggests that a grant of service connection is appropriate
for diabetes mellitus. Thus, the additional documentation is
not probative of the issue of entitlement to service
connection for diabetes, and there is no reasonable
possibility that the outcome of the claim would be changed,
in the event that the claim were reopened and adjudicated on
its merits. Therefore, the Board finds that the veteran has
failed to submit evidence which is both new and material to
his claim for service connection for diabetes mellitus, and
accordingly, the claim is not reopened.
ORDER
As new and material evidence has not been presented, the
claim for service connection for diabetes mellitus is not
reopened.
C. P. RUSSELL
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.